In the United States, a political leader's disagreement with the views of a protest movement does not give the government license to investigate those protesters. Rep. Nancy Pelosi (D-Calif.) should know.
However, recently it continued cnn and, without citing any evidence, accused protesters advocating for a ceasefire in Gaza of having ties to Russia and called on the Federal Bureau of Investigation to investigate the financing behind these protests. When outrage broke out a few days later over this proposed abuse of power, she bent.
It is precisely this type of danger that requires careful limitation of surveillance tools such as Section 702 of the Foreign Intelligence Surveillance Act, a law aimed at foreigners abroad but commonly misused to spy on Americans. That FISA provision will expire in April unless it is renewed by Congress. Lawmakers should not reauthorize it without fundamental reform.
Two other representatives from California, Tom McClintock (R-Elk Grove) and Sarah Jacobs (D-San Diego), have advocated for reforming Section 702 to protect the privacy of Americans. The House Judiciary Committee passed legislation last year to achieve this: the Protect Liberty and End Warrantless Surveillance Act would require the government present evidence of wrongdoing and obtain a court order before seeking communications from Americans, such as those protesting a ceasefire.
Pelosi, the former House speaker, was part of the inner circle aware of the surveillance findings (the “Gang of Eight”) longer than anyone else currently in Congress, so he knows the extensive tools the national security apparatus can use to investigate and surveil protesters. He also knows how those tools can be abused.
There is a long history of the FBI using “foreign influence” as an excuse to conduct illegal surveillance of Americans. The office watched Martin Luther King Jr. and other civil rights leaders, claiming that they might be under the influence of foreign communists. After 9/11, the FBI repeatedly profiling, guarded and disproportionately prosecuted American Muslims, often under the guise of affiliation with foreign adversaries. That shameful legacy would continue if anti-war protesters in Gaza were subjected to baseless surveillance.
While Section 702 requires that surveillance be directed at foreigners abroad, in practice, large amounts of the communications that Americans exchange with people abroad are also swept and stored for future investigations. If the FBI opened an investigation into demonstrators protesting the ceasefire, agents would almost certainly use the Section 702 database to find and record protesters' communications. Vague and unsubstantiated claims about foreign influence or foreign intelligence gathering can lead to a flood of illegal searches.
The FBI can search this database without having to show probable cause, as the Fourth Amendment would require. In most cases, an FBI analyst can search and review an American's private communications without requiring any additional approval.
Last year, government documents revealed that the FBI misused Section 702 to illegally query the communications of 133 Black Lives Matter protesters, as part of an unfounded investigation to determine whether they were subject to foreign influence.
According a report from the Privacy and Civil Liberties Oversight Board, from November 2020 to December 2021, “non-compliant inquiries related to civil unrest numbered in the tens of thousands.” Previous searches also include two “Middle Eastern” men who were loading boxes of cleaning supplies into a vehicle and a state court judge who had complained to the FBI about civil rights violations.
Section 702 has been abused under presidents of both political parties and used to illegally challenge the communications of individuals and groups across the political spectrum. That's why, as public trust in our leaders and institutions declines rapidly every day, lawmakers should strengthen civil liberties protections against abuses of power, not defend more of them.
Kia Hamadanchy is a senior policy advisor for the American Civil Liberties Union.
